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Monday, March 05, 2012

Some FOI act mandatory provisions optional in Victoria

Mystery solved, sort of.

In a post last year about cabinet documents I referred to a provision in the Victorian FOI act that when introduced almost thirty years ago was a long way ahead of it's time. Not that it would, if followed, disclose much about the cabinet process except that a decision had been made:

Those with long memories might also recall s 10
of the Victorian Freedom of Information Act that came into effect in 1983, and still in force, requiring the Premier to "cause to be
published on a continuing basis a register
containing-
(a) details of the terms of all decisions made by the Cabinet after
the
date of commencement of this Act;
(b) the reference number assigned to each such decision; and
(c) the date on which the decision was made.
(2) The information referred to in subsection (1) shall be entered on
the
register at the discretion of the Premier."

It was heralded at the time as
groundbreaking. Notice it doesn't say when or how. (the register is to be published) .There is this
reference to cabinet decisions to 1993 at the Public Record Office. A search
of the Department of Premier and Cabinet website for something
contemporary produces zero results. A Victorian reader may know when it
dropped off the radar and, ahem, why..

The question remained unanswered until in the wee hours in the Legislative Council debate on the FOI commissioner bill in committee on Tuesday last week, the following exchange occurred (LC Hansard 28 February pages 63-64). It seems that successive premiers simply decided not to comply with the requirement and no-one has talked about it much since:

Mr BARBER (Northern Metropolitan) — I also raised in the second-reading debate the question of the cabinet register. This is a document that is apparently required to be prepared under section 10 of the principal act. Where is that information publicly available? Where this register, which is required under the act, is even located — if it is prepared — is apparently a secret. That relates directly to a number of the ways in which I might use this very legislation we are debating.Hon. R. A. DALLA-RIVA (Minister for Employment and Industrial Relations) — I thank the member for forewarning us in the debate. In relation to section 10 of the principal act — and I note the comments made by Mr Barber — it has not been the practice of successive governments to publish cabinet registers. This section of the FOI act is unrelated to the amendments dealt with in this bill, and therefore it would be inappropriate for the government to debate the details of this provision at this time.

There ended discussion. The minister didn't seek to enlighten Mr Barber or anyone else on the discretionary nature of the obligation under s 10 which reads:
"The Premier shall cause to be published on a continuing basis ...."

Since 1983 Queensland and the ACT have decided to do something along these lines. In Victoria the obligation to do so, now 28 years on, simply sits on the statute book with successive premiers simply saying to themselves at least that they didn't like that bit.

Update: this anonymous comment subsequently received from someone with some involvement, and although not surprising, worth prominence beyond the Comments section:

I worked in the Victorian Cabinet Office in the 1980s and the Cabinet register was taken very seriously at that time. It was updated at least annually, and a lot of effort went into getting accurate information onto the (then hard copy) register. My colleagues and I agonised a bit about 'details of the terms of all Cabinet decisions', especially in cases where the issue continued to be the subject of further Cabinet submissions. The draft additions to the Cabinet register were very carefully checked by the Parliamentary Secretary of Cabinet before being put to the Premier (then John Cain) for his approval. I left the Cabinet Office in the late 1980s and am not aware of when the Cabinet register stopped being compiled, but I can easily imagine it was one of the first activities to be dropped if there were staffing or budget issues. It was one of those activities which appeared high risk with little reward except serving the 'public interest.'

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About Me

Peter Timmins is an Australian lawyer and consultant who works on FOI and privacy protection issues in Sydney, NSW. He has Arts and Laws (Honours) degrees
from the University of Sydney, and has been involved in the FOI field for 25 years.Peter is an experienced public speaker and commentator. See In the News and Testimonials, and Career Summary for more details on background and experience.